For the Balkinization Symposium on Richard Primus, The Oldest Constitutional Question: Enumeration and Federal Power (Harvard University Press, 2025).
Christina D. Ponsa-Kraus
Richard Primus’s pellucid,
meticulous, and entertaining book, The Oldest Constitutional Question, will
make 1L Constitutional Law simultaneously easier and more difficult to teach. Easier
because we now have an invaluable scholarly treatment of the proverbial oldest
constitutional question: that of “the proper division of authority between the
Federal Government and the States,” as the book’s epigraph, a quotation from New
York v. United States (1992), puts it. Harder because Primus’s comprehensive
and compelling critique of the currently dominant answer to this
question—“enumerationism”—could make it even more challenging to teach the Rehnquist
and Roberts Courts’ enumerationist cases with equanimity.
“Enumerationism,” Primus
explains, consists of two rules: first, “the rule that Congress can act only on
the basis of powers specifically listed in the Constitution” (the “enumeration
principle”); and second, “the rule that the enumerated powers, added together,
amount to less legislative power than the federal government would have if it
were a government of general jurisdiction” (the “internal-limits canon”) (p.2).
The Court has not only endorsed this understanding in three important cases on the
commerce power over the past three decades, but has described enumerationism as
an uncontested fact about our constitutional law. But I’ve never bought it.
(Primus’s definition, yes. Enumerationism itself, not so much.) I already have
a hard enough time keeping it together when I teach those three cases: United States v.
Lopez (1995), United States v.
Morrison (2000), and NFIB v. Sebelius
(2012). In the first two, the Court struck down federal laws on
enumerationist grounds, reasoning that the laws exceeded the scope of the
commerce power because the activities they regulated were not “economic”—regardless
of whether Congress regarded them as such and regardless of whether they had a
massive effect on interstate commerce either way. In the third, the Court
reached the same conclusion, this time on the ground that an individual’s
decision not to buy health insurance constitutes “inactivity” rather than “activity”
and therefore lies beyond the reach of the commerce power (though it then
upheld the law as an exercise of the power to tax).
Courts determine whether
Congress has the power enact a law how, again? You’re joking, right? Wait,
you’re serious? (Says the voice inside my head.) By the time we get to the
part in NFIB where Chief Justice Roberts marms the reader with the
observation that the Framers were not metaphysical philosophers at literally the
same time that he requires members of Congress to discern the distinction
between “activity” and “inactivity” when they grapple with how to solve a national
crisis, my lectern lies toppled over and my notes strewn across the floor, as I
stare wild-eyed at my PowerPoints and grip a piece of chalk that has snapped in
two.
Okay, just kidding, it’s not
quite that bad—though I did once semi-accidentally tear a page out of the
casebook while teaching these cases.
Primus has disrobed Emperor
Enumerationism, who now stands stark naked in the freezing cold. Yet Primus himself
might take issue with that description, which concededly does not credit him
sufficiently for the equanimity with which he engages opposing arguments. As he
should: despite my own no-love-lost relationship with Lopez, Morrison,
and NFIB, enumerationism has a storied history and formidable defenders,
at least some of whose arguments deserve the respectful treatment Primus has
given them. The book is a model of how to combine expertise and analytical
rigor with fairness and generosity toward one’s adversaries. No sooner has Primus
canvassed every possible argument in support of a given point than he qualifies
it with a comment along the lines of, I’m not saying that the opposing argument
is wrong; I’m just saying that my revisionist account is plausible.
Still, over and over, the
challenge to enumerationism comes out ahead. If you ask me, Primus’s arguments
are not merely plausible; they are persuasive, based on the criteria that we
all agree apply: history, structure, text, doctrine, practice. And his politic style
is not merely appropriate but essential, insofar as he is addressing a view as entrenched
as enumerationism has become.
Enumerationism dates to the
beginning of the Republic. Yet as Primus shows, so do other understandings of
federal power. Enumerationism has always been just one of them—and not even always
the dominant one—and never the one best reflected in actual governmental
practice. Yet as of the end of the twentieth-century, enumerationism has taken
hold on the Court, where majorities speak of it as if it were a self-evident
truth. As Primus observes ruefully, “[t]he twenty-first-century judiciary seems
inclined to resolve the longstanding dissonance between enumerationist theory
and nonenumerationist practice by forcing practice to conform to theory”
(p.356).
You wouldn’t have an inkling of the
dissonance between theory and practice (and history and structure and doctrine
and text) from reading the enumerationist opinions in the commerce cases on the
Rehnquist and Roberts Courts, which purport to abide by a longstanding
consensus. “We start with first principles,” Rehnquist intones in Lopez.
“The Constitution creates a Federal Government of enumerated powers. See Art.
I, §8.” Okay, let’s see Art. I, §8. I’m looking at it… and call me crazy, but while
I do see a list of powers there, I would swear it supports not what Rehnquist says
about it, but what Primus does: namely, that Article I, §8 “neither states nor
illustrates the proposition that the federal government can only exercise its
enumerated powers” (p.271). It’s just not there.
A little later in Lopez the
same thing happens again. “As Chief Justice Marshall stated in McCulloch v.
Maryland [1819],” Rehnquist declares, “’[t]he [federal] government is
acknowledged by all to be one of enumerated powers. The principle, that it can
exercise only the powers granted to it… is now universally admitted.’” Those
words are there, yes. But you would have to redact much of the rest of opinion
to come away from it believing that it makes the case for enumerationism. Not
even the quotation above makes the case, insofar as the “principle” it
describes concerns powers “granted,” not just “enumerated” (the former is a
larger category than the latter, as Primus discusses). And let’s not forget that
Marshall simply assumes that the federal government has the nowhere-enumerated power
to annex territory, proclaiming that “this vast Republic” extends “from the St.
Croix to the Gulf of Mexico, from the Atlantic to the Pacific,” and insisting
that the government must have discretion to choose the means with which to exercise
control over the continent, including by marching armies up one side of it and
down the other.
In other words, McCulloch
identifies the end served by the means of a national bank as that of conquest.
Do not see Art. I, §8. To read McCulloch as an enumerationist decision by
plucking out of it isolated sentences that sound in enumerationism is like
reading Moby Dick and summing it up as a book about a guy who wants
people to call him Ishmael.
And then it happens again. “See
also Gibbons v. Ogden [1824],” Rehnquist’s Lopez opinion instructs
us next, and a parenthetical quotation follows: “The enumeration presupposes
something not enumerated.” As Primus points out, people do regularly quote this
line from Gibbons in support of enumerationism. But then he skillfully
shows us that the line can be understood to refer neither to the Constitution
as a whole nor even to Article I, §8 in its entirety, but rather to the
enumeration of categories in the Commerce Clause itself: commerce with foreign
nations, and among the several states, and with Indian tribes. Read this way, Primus
argues convincingly, it does not lead to an enumerationist understanding of
federal power.
And by the way, what about the
rest of Gibbons? What about, for instance, the part where Marshall
explains that “[t]he wisdom and discretion of Congress, their identity with the
people, and the influence which their constituents possess at elections are, in
this, as in many other instances, as that, for example, of declaring war, the sole
restraints on which [the people] have relied, to secure them from its abuse.
They are the restraints on which the people must often rely solely, in
all representative governments” (emphases added). Why should the ambiguous and
inconclusive statement that “[t]he enumeration presupposes something not
enumerated” outweigh Marshall’s clear and sensible exposition of what actually
restrains Congress?
Thankfully, Primus builds his
case with a great deal more than competing quotations from Court opinions, highlighting
the evidence of alternative understandings in important debates such as those over
the Bank of North America, the Virginia and New Jersey Plans, the Bank of the
United States, and the federal power over slavery. These alternative understandings
include the view that the federal government has not only those implicit powers
necessary to carry into effect its express powers but implicit powers encompassing
even more than that; and that the government has powers that result from its
status as a national government (“resulting powers”) or, what is similar but
not identical, that it has powers inherent in sovereignty.
That last category takes us beyond
the canon, to cases that “tend to live on the edge of the constitutional
lawyer’s professional consciousness” (p.221). Primus focuses on three: Prigg v.
Pennsylvania (1842), Knox v. Lee
(1871), and United
States v. Curtiss-Wright (1936). That these and quite a few other cases
expressing alternative views of federal power live on the edge of the
constitutional lawyer’s professional consciousness is itself evidence of how
blinkered the canonical story is, for the ideas of resulting powers and powers
inherent in sovereignty trace their origins to the Founding era at least as
much as does enumerationism. As Primus discusses, the proposition that the
federal government has resulting powers and/or powers inherent in sovereignty arose
during the debate over the Bank of North America, when James Wilson became
perhaps its best-known exponent, arguing that even under the Articles of
Confederation “the United States ha[d] general rights, general
powers, and general obligations… resulting from the union of the
whole….” Wilson did appear to embrace enumerationism several years later in
his speech supporting ratification, but Primus makes a plausible case that Wilson
likely made that argument in that moment as a matter of strategy, not due to a
change of heart. And in any event, the point is that there have always been
alternative, and prominent, accounts of federal power.
Enumerationists respond to these
alternative accounts and defend their own with what Primus terms the “MustBeSomething
Rule” and “Unlimited Congress Fallacy” (p.244) (needless to say,
enumerationists don’t endorse the “fallacy” part of the latter): the related
ideas that there must be something Congress can’t do and that enumerationism is
not just the correct reading of the Constitution but a necessary one, because, as
Primus accurately summarizes Rehnquist’s reasoning in Lopez, “an absence
of internal limits on congressional power would be tantamount to there being no
limits at all on Congress.” (p.272) The obvious response, as Primus points out,
is that Congress is limited—externally: by the separation of powers,
affirmative constitutional limits, the political process, and, as discussed
later in the book, state sovereignty, including as enforced in the anticommandeering
jurisprudence, which he rightly observes “rests less on an analysis of what is
missing from Congress’s enumerated powers than on a set of ideas about the
distinctive status of state governments within the federal system” (p.307).
So why would a judge suggest that
without internal limits there are no limits at all? “Competent jurists,” Primus
observes gamely, “are presumably always aware that the Constitution imposes
external limits on congressional power” (p.246). Then he proceeds, admirably without
showing any signs of being about to tear a page out of any casebook, to speculate
on why said jurists nevertheless say things that imply otherwise. It must be,
he proposes, that the lack of internal limits sounds more ominous if one omits
mention of external limits. Undeniably it does. Also ominous: a judge
pretending not to know what we all know he knows.
As someone who works on the constitutional
status of the U.S. territories, I’ve spent a lot of time on the edge of
consciousness, and I’m here to report that an understanding of the constitutional
status of the territories might offer yet another salutary corrective to
enumerationist fears of an unlimited federal power. When it comes to the
territories, the unlimited Congress becomes less of a fallacy and more of a reasonable
fear. Constitutional rights do protect territorial residents, albeit not
identically to the way they protect people in states. But neither the
separation of powers nor the political process nor sovereignty protect
territorial autonomy.
Federal plenary power over
territories consists of the combined powers of both the federal government and
a state. The federal government can create, modify, or eliminate a territory’s
government. It may allow or deny it the opportunity to adopt a local
constitution. It may govern the territory directly or govern it indirectly by
delegating powers to it. It may appoint its Governor or allow territorial
residents to elect the Governor. It may establish an Executive Council with the
power to veto territorial legislation, as it did in the territories throughout
the nineteenth century and into the twentieth, and as it reprised more recently
in different form with the Financial Oversight and Management Board, which
Congress created to manage Puerto Rico’s economic crisis.
When it comes to territorial
autonomy, that is, the federal government can, seemingly, do whatever it wants.
So when enumerationists concerned with state autonomy cite the threat of an unlimited
Congress in support of internal limits on federal power, I’m not impressed.
More to the point, when I wonder what
would snatch autonomy from the jaws of federal plenary power over the
territories, enumerationism doesn’t even make the cut. Primus analogizes the
protection that external limits provide to a shield. Enumerationists see
internal limits that way too. But from the territorial perspective, relying on the
internal-limits canon to protect autonomy is like trying to fend off a sword
with a flyswatter. Robust affirmative limits, real separation of powers, recognized
sovereignty, and—more than anything else—inclusion in the political process: it
is in these external limits on federal power that genuine and lasting autonomy can
be found.
Christina D. Ponsa-Kraus is
the George Welwood Murray Professor of Legal History at Columbia Law School. You
can reach her by email at cponsa@law.columbia.edu.